1981 PLP 733 (PLC(CS))

(ii) that even if somehow It could be presumed that the two demands are similar, the demand could not be raised in view of the settlement, dated 2nd October, 1977 ; and (iii) that the demand in question being an enforcement of the rights of individual workers cannot form the subject‑matter of an indus trial dispute under section 32 (1) (a), I. K. O.

5. In order to appreciate the contending submission of the learned representatives I will compare the original demand made by the appellant. Union with the demand raised in the charter of demands, dated 20th July, 1978, and also refer to the definition of industrial dispute as contained in the I. R. O. and make brief reference to the observations of their Lord ships of the Supreme Court in the Brooke Bond's case which are pertinent for the purposes of this appeal.

6. The original demand for payment of compensation to workmen made by the appellant‑Union has been reproduced in the judgment of their Lordships in the Brooke Bond's case at page 243 of the report. The demand is worded as follows: ‑ "(2) Full average rate for weekly holiday/holidays for the workmen who are/were on daily wages." The demand made in the charter of demands, dated 19th July, 1978, reads as follows: ‑ "Demand No. 1.‑The Workers of the factory and office shall be paid/ compensated for the weekly holidays, which were/are not paid as such. In the rates of the minimum and maximum of the grade and annual increments and at all stages of the grade, the wages equiva lent to 4 weeks in a month shall be added and then the wage structure and wages of the workers shall be so determined that such worker is befitted appropriately and paid arrears on account hereof accordingly, since July, 1969."

7. A comparison of the two demands makes it clear that though both are in respect of payment of compensation for weekly holidays, they are not only dissimilar but their object is different. The original demand was for payment of full average rate of wages for weekly holidays only for the workmen who were on daily wages. The demand was prospective. At any rate it does not mention any back date from which the demand was to become operative. On the other hand, demand in the charter of demands dated 19th July, 1978. was compensation for weekly holidays in respect of the workers of factory and office who are not being paid or given such compensation. Furthermore, not only the formula on which compensation was to be paid was laid down but even the number of days in the month for which compensation was payable was specifically stated. Finally the compensation was payable prospectively from July, 1969. These changes in my humble opinion, make the subsequent demand wholly different from the demand made in 1972. As such, even if it be assumed that the original demand made in 1972 was kept alive by the judgment of the Supreme Court, the demand which form the subject- matter of the present appeal, being of substantially different character, cannot be said to have been kept alive by or to have been raised in consequence of the judgment of their Lordships of the Supreme Court. It was submitted by Mr. M. A. Khan that the reason for making the sub sequent demand of a wholly different character was that the earlier demand, relating to the payment of compensation for weekly holidays to daily wages workers, was no longer a live issue between the parties because of the settlement arrived at on 19th October 1971, by which all daily workers had been made monthly wages workers according to the award of the Court. The said settlement has been held in the Brook Bond case to be valid and binding. This, is therefore, a further circumstance indicating that the second demand was wholly different in character from the original demand made in 1972.

8. There is another strong ground repelling the contention of Mr. Abdul Majeed that the demand in question either arose or was kept alive by the judgment of their Lordships in the Brooke Bond's case. The Supreme Court did not hold that the appellant union had an unfettered or unqualified right to raise all or any of the demands made in the charter of demands of 1972. The observation of their Lordships of the Supreme Court in this behalf appear at page 273 of the report which read as follows ;‑‑ "By and large I have refrained from expressing any opinion on the merits of the various demands raised by the two Unions against the Company. It is primarily because in spite of this judgment, the two Unions are not debarred from raising their demands afresh against the Company in accordance with the requirements of the law for adjudication under the Ordinance and except as otherwise stated above to the contrary, nothing contained herein shall be construed as prejudging their demands on the merits." It will be seen that all that their Lordships of the Supreme Court expressed was that the appellant Union would not be debarred from rais ing their demand afresh in accordance with the law. The law, at the time that the second charter of demands was raised on 19th July, 1978, did not permit the raising of ac Industrial Dispute in respect of the enforcement of any right guaranteed to a worker under any law, award or settlement. The definition of "industrial dispute" in the I. R. O., as amended by Act XVI of 1975, reads as follows :‑ "Industrial Dispute" means any dispute or difference between em ployers and employers or between employers and workmen or between workmen and workmen, which is concerned with employment or non- employment or the terms of employment or the condition of work of any person : and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force."

9. The words "and in respect of enforcement of any right" upto the end of the definition were added by Act XVI of 1975. By the same Act, matters relating to the enforcement of any right guaranteed or secured to the C. B. A. or any workman by or under any law, other than the I. R. O.: or any award or settlement, were excluded from the purview of collective bargaining between the C. B. A. and the employer, as provided in clause (a) of subsection (12) of section 22, I. R. O. The reason for such exclu sion was that rights secured or guaranteed to the C. B. A. were to be en forced by means of an application under section 34, I. R. O., while the right guaranteed or secured to workmen under any law, award or settle ment could be enforced through the individual grievance procedure pro vided under section 25‑A, I. R. O. As according to the observations of their Lordships of the Supreme Court, the appellant‑Union could only raise the demands afresh in accordance with the law and as the law at the relevant permit the raising of a demand for the enforcement of a right secured or guaranteed to a workman, under any law, award or settlement and as it is common ground that the grant of a weekly holiday to a worker in a factory is governed by the provisions of section 35 of the Factories Act, no industrial dispute could be founded or raised on the demand in question.

10. A further impediment to the maintainability of the appli cation of the appellant‑Union is that no demand was made by it in its charter of demands, dated 17th June, 1977, for payment of com pensation to workers for weekly holidays, despite the fact that the judg ment of the Supreme Court was announced about‑6 months earlier. The non‑raising of this demand in the said charter of demands indicates that either the appellant‑Union was conscious of the fact that by reason of the change in the law it could no longer raise the demand in question or alternatively that it had waived the same. I find no force in the conten tion of Mr. Abdul Majeed that the non‑raising of this demand in the above charter of demands was due to wrong advice tendered to the appellant‑Union by its legal adviser.

11. Another patent objection to the maintainability of the appellant- Union's application is the settlement, dated 2nd October, 1977, which was produced before the learned Labour Court. Clause 14 of the said Settle ment provides as follows: ‑ "The Union agrees not to raise any demands having any financial implications during the currency of the settlement. The Union also agrees not to raise any demand during the currency of this settle ment which has already been raised in the Charter of Demands, Annexure `A'. It is not disputed that the demand in question does involve financial implications. As the settlement, dated 2nd October, 1978, was to remain in force till 13th March, 1979 the demand in question could not have been raised in July, 1978, by reason of the above provision in the settlement.

12. For the reasons discussed above, I find no force in this appeal and would, accordingly, dismiss the appeal and uphold the decision of the learned Labour Court. Appeal dismissed,